When Hawaii-based U.S. District Judge Derrick Kahala Watson issued his short-lived October 17, 2017 U.S.-wide restraining order of President Trump’s September 24, 2017 Proclamation 9645 (sometimes called the “third travel ban”), the lifetime Article III appointee felt compelled to lead with injudicious humor: “Professional athletes mirror the federal government in this respect: they operate within a set of rules, and when one of them forsakes those rules in favor of his own, problems ensue.”
The Obama-appointee who, like President Obama, both was born in Honolulu and graduated in the Harvard Law Class of 1991, witnessed his order quickly fall victim to his own inept witticism. On December 4, 2017, the Supreme Court summarily stayed his imperious 40-page order on a 7-2 vote (“December 2017 SCOTUS Order”).
Remarkably, the December 2017 SCOTUS Order contains only five sentences. Yet, despite its brevity, the 7-2 decision is educational, stinging, and potent.
BACKGROUND – the June 2017 SCOTUS and October 2017 SCOTUS Orders
First, some background. Recall the Supreme Court had already seen fit, on June 26, 2017, to grant the President’s petition for writ of certiorari for the Court to intervene in earlier travel ban lawsuits. That 16-page opinion (“June 2017 SCOTUS Order”) substantially reinstated the President’s directives and took the liberal media by surprise – both as to outcome and the prodigious 9-0 vote.
The breaking news snippets failed to publicize the critical underpinnings of the ruling:
1. “(‘[A]n unadmitted and nonresident alien . . . ha[s] no constitutional right of entry to this country’). So whatever burdens may result from enforcement … against a foreign national who lacks any connection to this country, they are, at a minimum, a good deal less concrete than the hardships identified by the courts below.”
2. “[T]he Government’s interest in enforcing [the travel ban], and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States.”
3. “The interest in preserving national security is ‘an urgent objective of the highest order.’ … To prevent the Government from pursuing that objective … against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.”
All nine Justices, typically split on ideological lines, thereby provided unanimous guidance to the lower courts about issuance of extraordinary remedies against the Executive Branch. Then, on October 10, 2017, in an 8-1 vote, the Court summarily ordered the lower court to dismiss the challenge as moot.
The December 2017 SCOTUS Order
We now move to the one-page December 2017 SCOTUS Order. As outlined in this column, this 7-2 decision favoring the President is …
Educational. In the category of “you say it best when you say nothing at all,” SCOTUS stayed Watson’s 40-page order with an unsigned edict. SCOTUS, just six months prior, provided ample guidance to lower courts. The Court didn’t feel the need to explain it again.
Stinging. The swiftness and succinctness in staying the lower court’s actions was stinging. Few federal judges have found their orders stayed by the Supreme Court in a paltry 48 days.
Potent. Supreme Court Rule 10 states: “Review on a writ of certiorari is not a matter of right, but of judicial discretion” and “will be granted only for compelling reasons.” Ergo, the Supreme Court rarely grants Cert Petitions. Yet, in less than six months in 2017, SCOTUS accepted two Cert Petitions on the same subject. This atypical Court intervention and swift outcome favored the President, 9-0, 8-1, and 7-2.
Remarkably, in its December 2017 SCOTUS Order, the Court prospectively ordered that notwithstanding any future appellate court ruling, the lower court injunction would NOT be effective until either the Supreme Court says so or the President chooses not to appeal. Whoa.
WHERE TO NOW?
The fourth sentence in the December 2017 SCOTUS order is instructive: “[W]e expect that the Court of Appeals will render its decision with appropriate dispatch.” On December 22, 2017, a three-judge panel of the Ninth Circuit (all Clinton appointees) partially upheld and partially overturned Judge Watson’s ruling but dutifully stayed enforcement of its own ruling. On January 5, 2018, the President, as expected, petitioned the Supreme Court for a writ of certiorari. A 4th Circuit ruling in a similar case is pending. Regardless, the Supreme Court has reserved the final ruling for itself.
The edifying June 2017 SCOTUS order isn’t hard to follow. Start with the premise that an “unadmitted and nonresident alien” has “no constitutional right of entry to this country,” then add the concepts about Executive authority being at a “peak when there is no tie between the foreign national and the United States” and national security being “‘an urgent objective of the highest order.’”
My takeaway: a federal district judge considering an INJUNCTION of the President’s national security actions should focus on discretion, recognize that national security interests exceed the hardships of a delay in a legal immigrant bringing extended foreign family into the U.S., and manifest some deference to the President.
I predict the Supreme Court will, on at least a 6-3 vote, side largely with the President. The opinion’s leitmotif will be one of deference to the other TWO co-equal branches of governments and the constitution’s masterful separation of powers.
The Court will acknowledge the exigent charge of the Executive to secure our country, decline to second guess the validity, adequacy or wisdom of Presidential findings, ignore the unconstitutional Muslim ban jabber, and implicitly concede that the judiciary lacks the expertise, classified intelligence, manpower, or authority to micromanage the President’s national security apparatus. The Court will recognize that Congress may, should it believe the President isn’t following the letter or intent of immigration laws, pass more definitive legislation.
And with its own superseding stay of the various lower court orders in place, the Supreme Court will not feel the need to similarly rush to judgment.
Ben Williams, a Mississippi attorney, has traveled to more than 51 countries, including visits to East Germany on October 3, 1990, Peru on April 5, 1992, and Hong Kong on July 1, 1997. Email Ben at MBWJ@aol.com. Ford Williams, the artist, is a sophomore at the Savannah College of Art & Design (SCAD).
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